2015 ORS § 163.305¹

Definitions

As used in chapter 743, Oregon Laws 1971, unless the context requires otherwise:

(1) Deviate sexual intercourse means sexual conduct between persons consisting of contact between the sex organs of one person and the mouth or anus of another.

(2) Forcible compulsion means to compel by:

(a) Physical force; or

(b) A threat, express or implied, that places a person in fear of immediate or future death or physical injury to self or another person, or in fear that the person or another person will immediately or in the future be kidnapped.

(3) Mentally defective means that a person suffers from a mental disease or defect that renders the person incapable of appraising the nature of the conduct of the person.

(4) Mentally incapacitated means that a person is rendered incapable of appraising or controlling the conduct of the person at the time of the alleged offense.

(5) Physically helpless means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

(6) Sexual contact means any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party.

Notes of Decisions

Although evidence included a state­ment by victim made to cause defendant to believe that she was con­senting to intercourse, but made with the ultimate motive of opening an avenue for her escape, evidence of rape was sufficient to submit to the jury. State v. Forsyth, 20 Or App 624, 533 P2d 176 (1975)

Legislative intent is that separate sen­tences are permissible for rape and sodomy of­fenses arising out of same crim­i­nal episode. State v. Garcia, 288 Or 413, 605 P2d 671 (1980)

In pros­e­cu­­tion for viola­tion for ORS 163.425 (Sexual abuse in the second degree) (sexual abuse in first de­gree), evidence that defendant was being sexually fondled by his wife and that he at­tempted to expose himself to children in backseat of his car was probative of sexual arousal and therefore also probative of purpose under this sec­tion. State v. Fitch, 47 Or App 205, 615 P2d 372 (1980)

Under this sec­tion, any penetra­tion is sufficient to sustain charge of rape. State v. Wolfe, 56 Or App 795, 643 P2d 404 (1982)

State­ment by doctor that vagina and outer lips of genitalia of four-year old girl were markedly inflamed and irritated so that he thought it was quite possible she was sexually assaulted was sufficient evidence to es­tab­lish that penetra­tion however slight had occurred. State v. Hollywood, 67 Or App 546, 680 P2d 655 (1984), Sup Ct review denied

Where citys mandatory min­i­mum penalty is harsher than states for same con­duct, citys penalty is invalid as incompatible with state crim­i­nal law under Article XI, Sec­tion 2 of Oregon Constitu­tion. City of Portland v. Dollarhide, 300 Or 490, 714 P2d 220 (1986)

For purposes of this sec­tion, intimate parts of body are parts subjectively intimate to per­son touched, and which are known by accused to be so or are area of anatomy that would be objectively known to be intimate by any reasonable per­son. State v. Woodley, 306 Or 458, 760 P2d 884 (1988)

Where jury was entitled to infer from evidence that defendant who was charged with rape in first de­gree subjected victims to forcible compulsion, one ele­ment of charged crime in or within one mile of Multnomah County, Multnomah County trial court did not err in rejecting defendants lack of venue argu­ment and denying his mo­tion or judg­ment of acquittal. State v. Sanarrita, 102 Or App 349, 794 P2d 457 (1990)

Appraisal of con­duct by per­son who is mentally defective means exercise of judg­ment and making of choices based on per­sons understanding of nature of per­sons own con­duct. State v. Reed, 339 Or 239, 118 P3d 791 (2005)

Intimate parts of per­son means body parts that per­son ordinarily allows to be touched only by other people with whom per­son has close per­sonal rela­tionship marked by love, ardent liking or mutual cherishing. State v. Meyrovich, 204 Or App 385, 129 P3d 729 (2006), Sup Ct review denied

For act to constitute forcible compulsion by threat, per­son must directly and distinctly state or express to victim intent to inflict harm. State v. Magel, 246 Or App 725, 268 P3d 666 (2011)

To constitute forcible compulsion under sec­tion, physical force must be greater in de­gree or different in kind from simple move­ment and contact inherent in sexual contact at issue and must be sufficient to compel victim to submit to or engage in sexual contact against the victims will. State v. OHara, 251 Or App 244, 283 P3d 396 (2012), Sup Ct review denied

Sixteen year old victim, who voluntarily consumed alcohol provided by defendant, and who defendant then sexually assaulted, was not mentally incapacitated at time of of­fense because victim con­sented to drinking alcohol. That victim was mi­nor does not bear on victims ability to con­sent to drinking alcohol. Burcham v. Franke, 265 Or App 300, 335 P3d 298 (2014)

Genitalia and breasts are intimate parts as matter of law under this sec­tion, and undeveloped genitalia and breasts of children are included within defini­tion. State v. Turner, 33 Or App 157, 575 P2d 1007 (1978), Sup Ct review denied

Rule that state is not permitted to introduce evidence of other crimes or bad acts solely to prove defendant acted as on prior occasions is strictly applied in sex crime cases, even those involving deviate sexual behavior, in so far as con­duct with per­sons other than victim is concerned. State v. Sicks, 33 Or App 435, 576 P2d 834 (1978)

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